People v. Nagler

• Decision Date: 09 July 1964
• Citation: 251 N.Y.S.2d 107,21 A.D.2d 490
• Parties: The PEOPLE of the State of New York, Appellant, v. Charles NAGLER, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 107

251 N.Y.S.2d 107

21 A.D.2d 490

The PEOPLE of the State of New York, Appellant, v. Charles NAGLER, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

July 9, 1964.

Milton M. Stein, New York City, of counsel (H. Richard Uviller, New York City, on the brief; Frank S. Hogan, Dist. Atty.) for appellant.

Donald Tirschwell, Spring Valley, of counsel (Milton B. Shapiro, Spring Valley, attorney) for respondent.

Before BREITEL, J. P., and RABIN, VALENTE, STEVENS and STALEY, JJ.

STEVENS, Justice.

This is an appeal by the People from an order entered May 11, 1964, which amended a judgment of conviction nunc pro tunc as of July 26, 1963, so as to allow defendant-respondent (defendant) credit for a period of incarceration in prison in Paris, France, while awaiting extradition on a charge of which he was subsequently convicted.

March 20, 1961, defendant fled the jurisdiction. April 17, 1961, a warrant was issued for his arrest on charges of forgery and grand larceny. February 5, 1962, defendant was arrested in Paris and remained incarcerated until his extradition in July 1962.

After his conviction upon a plea of guilty, and later sentence, defendant moved for an order pursuant to Penal Law Section 2193, for clarification of such statute and for credit for the time spent in prison in France. It is from the granting of such motion and the order amending the judgment nunc pro tunc that this appeal is taken.

Two questions are posed by this appeal--(1) may the court amend its own judgment under the circumstances as they exist here; (2) should the defendant be allowed credit for the extradition time.

Generally speaking, whether the judgment be of acquittal or conviction (Code of Criminal Procedure, § 442), fine (id., §§ 483, 484) suspended sentence or suspension of execution of sentence or imprisonment (Penal Law, § 2188; Code of Criminal Procedure, §§ 470-a, 471; People ex rel. Woodin v. Ottaway, 247 N.Y. 493, 161 N.E. 157), it represents the official judicial decision or disposition of the criminal proceeding. While the court has power to remit a fine (C.C.P. § 484); no such power of sentence alteration ordinarily exists where the sentence is, as here, one of imprisonment. '[T]he imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced' (Penal Law, § 2188, C.C.P. § 470-a). '[T]he term of imprisonment of each prisoner shall begin on the date of his or her actual incarceration in a state prison or penitentiary' (Correction Law, § 231).

Notwithstanding the language of section 2188, it is clear the court has inherent power to correct its own mistakes, and set aside its own judgment in the filed where coram nobis is utilized when such judgment is due to error and is procured by fraud or misrepresentation (Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425), where the prosecutor knowingly used perjured testimony (Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 56 N.E.2d 79) or certain constitutional right violated which are not in the record to be cured by appeal (Matter of Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909; Hogan v. Court of General Sessions, 296 N.Y. 1, 68 N.E.2d 849; People v. Kendricks, 300 N.Y. 544, 89 N.E.2d 257). Such errors are errors of fact which are not apparent on the face of the record so that they could be cured by appeal, and such facts have not been adjudicated because they were unknown. If the court were without power to correct the judgment, the errors and such inability could constitute a violation of due process or result in rank injustice (cf. People v. Meshel, 245 App.Div. 673, 284 N.Y.S. 193).

In the case before us, since a failure to allow credit for extradition time was not an error of fact affecting the judgment, nor was it in violation of a constitutional right, the court was without power to amend the judgment.

If it be concluded the defendant is entitled to credit for the extradition time, the fact that an improper procedure or method of redress was adopted would not preclude this court from granting relief.

Section 2193 of the Penal Law upon which defendant premised his application, provided in part: ¹

'1. Any time spent by a person heretofore or hereafter convicted of a crime in a state institution for defective delinquents or insane criminals * * * prison or jail prior to his conviction and before sentence has been pronounced upon him, shall become and be calculated as a part of the term of the sentence imposed upon him * * * and such time shall, in addition to the discretionary deduction allowed under the provisions of the correction law, be deducted from the term of the sentence so imposed, under the provisions of article nine of the correction law.'

By Ch. 734, L.1957, effective July 1, 1957, provision was made for allowance of time spent 'in a state institution for defective delinquents or insane criminals', and by L.1958, chapter 149, effective March 10, 1958, the section was further amended to include persons 'heretofore or hereafter' convicted of crime, etc. Laws of 1960, Ch. 711, extended the coverage of time spent to that spent in a 'county or city psychiatric institution.' Thus, it is clear the scope of section 2193 has been steadily broadened to permit credit for detention or incarceration when such confinement is predicated upon the charge for which conviction is later had and sentence imposed (See, People ex rel. Kern v. McDonnell, Sup., 137 N.Y.S.2d 149.) '[T]he time spent in jail prior to conviction must, at least, bear an intimate and substantial relationship to the crime for which such person is subsequently convicted' (Matter of Bernoff v. Amoroso, 188 Misc. 845, 847, 65 N.Y.S.2d 810, 813).

'The term, 'prison' * * * means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest.' 'The term, 'prisoner,' * * * means any person held in custody under process of law, or under lawful arrest.' (Penal Law, § 1690; People ex rel. Cohalan on Behalf of Buckner v. Warden of City Prison, N.Y., Sup., 96 N.Y.S.2d 749.) In neither definition does the limiting term 'state' appear, the reference apparently being only to time spent in prison or jail 'upon the charge of the crime for which the conviction in question was had.' Cf. People v. Kowalsky, 2 A.D.2d 938, 156 N.Y.S.2d 656, aff'd 2 N.Y.2d 949, 162 N.Y.S.2d 355, 142 N.E.2d 421.)

A fugitive from justice detained in prison in another state or territory of the United States by reason of being charged with the commission of a crime in a sister state is held in custody under process of law (U.S.Const. Art. 4, § 2, cl....